Musicians in the Lancaster (Pa.) Symphony Orchestra (LSO) are employees and not independent contractors, and they may therefore unionize, the U.S. Court of Appeals for the D.C. Circuit ruled in a recent opinion, affirming a decision by the National Labor Relations Board (NLRB).

The LSO, which puts on approximately four classical music concerts each season, engages musicians for rehearsals and the concerts. Every season, the musicians sign an agreement stating that they are independent contractors, among other terms, for the rehearsals and concerts they will attend, and that no taxes will be withheld by the LSO. The musicians are paid for each rehearsal or concert in which they practice or perform, and they may work for other employers throughout the season. The musicians also must adhere to the LSO’s strict behavioral standards during rehearsals and concerts—which include rules covering everything from their playing posture and conversation to obeying the conductor’s directions, wearing formal attire, and standing and smiling at the audience during applause.

The Greater Lancaster Federation of Musicians, Local 294, sought to represent the LSO’s musicians. Under the National Labor Relations Act, independent contractors are not employees protected by the act. Accordingly, the LSO argued that the petition for certification filed by the union should be dismissed because of the independent contractor status of the musicians.

On July 27, 2007, the regional director for Region 4, in dismissing the representation petition, issued a decision and order in which she found that symphony orchestra musicians in the petitioned-for bargaining unit were independent contractors, not statutory employees. Thereafter, the NLRB filed a request for review of that decision. The board’s 2011 review of the regional director’s decision predated the board’s decision in FedEx Home Delivery, 361 NLRB No. 55 (2014), wherein the board claimed to restate and refine its approach to the independent contractor test by weighing “all of the incidents of the [employment] relationship,” assessing the “total factual context” in light of the pertinent common-law agency principles” found in the Restatement (Second) of Agency Section 220 (1958), and emphasizing that no one factor is determinative in the analysis. In applying its 2011 analysis to the facts at hand, the board determined the LSO maintained substantial control over the musicians and the musicians had limited entrepreneurial opportunities. The board concluded the multifactor test weighed in favor of finding an employer-employee relationship between the musicians and the LSO, and reinstated the petition. The board focused primarily on the first factor in the common-law agency test: whether the LSO has the right to control the manner and means of the performance of the job. Specifically, the board held that the LSO retained control over:

The musical selections and style of performance.

Which musicians are selected for each performance.

The rehearsal schedule, including the number of rehearsals and how they were conducted.

The LSO appealed to a three-judge panel of the D.C. Circuit, seeking to overturn the NLRB’s decision. In conducting its analysis of whether the musicians were employees or independent contractors, the D.C. Circuit focused heavily on the LSO’s “right of control” over the musicians. Where a would-be employer exerts great control over the means and manner of a worker’s performance of a job, the factor weighs in favor of finding that workers are employees. The D.C. Circuit found that the LSO regulated “virtually all aspects of the musicians’ performance,” to include a ban on leg-crossing or conversation during warm-ups or when the conductor took the podium. More important than the etiquette regulations, the court wrote, was that the “conductor exercises virtually dictatorial authority over the manner in which the musicians play” to “mold the performance into the conductor’s personal interpretation of the score.”

Even though the musicians worked only about 150 hours a year for the LSO, provided their own instruments and were required to have a high degree of skill in order to perform, the court found that these aspects, while normally weighing in favor of independent contractor status, were outweighed by the lack of entrepreneurial opportunities. Musicians could not contract to fill multiple chairs, sell their chair with the LSO to another musician or hire someone else to fill their slot at a lower rate of pay. While musicians could decline concerts and rehearsals to take “a higher paying ‘gig’ with another symphony,” the court found this to be more similar to a job characteristic of a part-time employee, as opposed to an independent contractor. Although the D.C. Circuit recognized that both the LSO and the union had good arguments for their respective positions, under the governing standard the court had to defer to the board’s ruling when a case presented a choice between “two fairly conflicting views.”

The D.C. Circuit denied the LSO petition for review and granted the board's cross-application for enforcement.

Professional Pointer: The employer’s right to control a worker's performance conditions is critical when contemplating independent contractor relationships, even when explicit, signed agreements appear to confirm independent contractor status.

John S. Bolesta and Zachary S. Stinson are attorneys in the Washington, D.C., office of Ogletree Deakins.